Advocates and Housing Agencies Holding Their Breath

Could recent events be affecting the Supreme Court’s release of its decision in Texas Department of Community Affairs v. Inclusive Communities Project, Inc.? A decision in this case, which will determine whether housing discrimination can be proved through showing a “disparate impact,” is expected any day now. The case was argued in January, the current session of the Court will soon expire and yet still no opinion has been forthcoming. Meanwhile, the fair housing community, state housing agencies and policymakers everywhere can only wait and hope that the court issues a decision that respects the letter and the spirit of the Fair Housing Act. Here is what the case is about.

In TexasDepartment of Community Affairs, the practices of state department of community affairs regarding allocation of low income housing tax credits were under scrutiny. Low income housing tax credits are used as a tool to develop affordable housing for low and moderate income families. The lower court found that the state agency approved LIHTC projects more frequently in areas that were non-white and less frequently in census tracts that were predominantly Caucasian. (This is the classic problem of chicken and egg: LIHTC allocations are most needed in areas where low income residents live and those families tend to be more non-white.) The Fifth Circuit Court of Appeals, interpreting HUD regulations, set forth a scheme for the parties to follow in fair housing disparate impact cases and then sent the case back to the District Court. However, the department of community affairs appealed to the Supreme Court which, until now, has not weighed in on whether a claim of housing discrimination can be shown by the disparate impact. (There is a whole jurisprudence devoted to disparate impact in employment discrimination cases that would take many pages to explain but fundamentally the question is whether the principles developed in employment discrimination cases apply to housing discrimination actions.)

For my own part, I wonder whether the Court, in light of recent events in Ferguson, Staten Island and now, most sadly, in Charleston, South Carolina, may be exercising some restraint in weighing in on issues of racial housing discrimination. It is one thing to decide an issue of burden of proof in a housing discrimination in a political environment where legal commentators are fulminating on same sex marriage and the fate of Obamacare. It is quite another for the Supreme Court to issue a housing discrimination decision after nine innocent African-Americans are gunned down during Bible study.

If the Supreme Court holds that housing discrimination can be proved through disparate impact, such a decision would have wide-ranging implications not only for the allocation of state low income housing tax credits but all sorts of state and local activities (think zoning, folks). On the other hand, it is difficult (though not impossible) to prove intentional discrimination. In the absence of the ability to address housing discrimination through disparate impact analysis, how do advocates start moving the needle on housing segregation? These questions are not easily answered.

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